January 7, 1991

Appeal of

MELVIN R. KESSLER

Under Contract No. HCR 25871

PSBCA No. 2775

APPEARANCE FOR APPELLANT:

Melvin R. Kessler

APPEARANCE FOR RESPONDENT:

Deborah A. Davis, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

This appeal involves the denial of a claim in the amount of $421.18 for damages to Appellant’s vehicle, lost wages and attorney fees in connection with his highway transportation contract with Respondent, United States Postal Service. In an Opinion of the Board dated October 25, 1990, the Board denied the appeal. Appellant thereafter filed a timely Motion for Reconsideration in which he alleges for the first time that his appeal should be granted because the Contracting Officer failed to issue a timely final decision on his claim. Respondent has filed an opposition to the motion.

Appellant states that his claim was filed on November 9, 1989, and he failed to receive a decision from the Contracting Officer within a 60-day period. After a second request was made by Appellant, the Contracting Officer’s final decision was issued on February 9, 1990. These allegations, which form the bases of Appellant’s argument, find actual support in the record, and are taken as true for purposes of ruling on the motion.

Appellant contends that the failure of the Contracting Officer to issue a timely final decision on his claim is an infraction which should result in awarding Appellant the amount of his claim. Therefore, although Appellant did not formerly raise this issue, he now argues the Board to reconsider and to reverse its previous decision and sustain his appeal.

From the record it is clear that Appellant’s argument is not based on any newly discovered or previously unavailable evidence that might constitute a ground for reconsideration. Moreover, as indicated below, there is no merit in his legal argument.

For failure of a contracting officer to render a timely final decision on a claim of $50,000 or less, the controlling statute, the Contract Dispute Act (Act or CDA), provides two remedies for a contractor: (1) petition the agency Board of Contract Appeals to direct the Contracting Officer to issue the decision within a specified period of time, or (2) treat the failure as a denial of the claim and file the appeal with the Board or bring suit as provided by the statute. These statutorily prescribed procedures are the available remedies for a contractor in cases where his claim is not decided promptly by a contracting officer. The Act does not require that Respondent be barred from defending an appeal (or that Appellant be entitled to a judgment on the merits) for failure of a contracting officer to meet the time requirements of Section 6 of the CDA. Consolidated Maintenance Co., ASBCA No. 30946, 86-1 BCA ¶ 18,603. Cf. Shorthaul Trucking Co., PSBCA No. 1046, 84-1 BCA ¶ 17,012.

Accordingly, we conclude that Appellant’s contentions concerning the delay in issuing the Contracting Officer’s decision, which was subsequently appealed to this Board, do not provide a basis to reverse or modify our previous decision. Therefore, the Motion for Reconsideration is denied.

James E. Lemert

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman